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Olsen v Sterling Crown Pty Ltd

Olsen v Sterling Crown Pty Ltd

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Case Copied 31 October 2008 43 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

OLSEN v STERLING CROWN PTY LTD

[2008] FMCA 1392

INDUSTRIAL LAW – Records relating to employees – contravention of requirement to produce records for inspection – admitted contraventions – penalty – factors for consideration – whether multiple contraventions – effect of payment of infringement notice – whether infringement notice constituted prior contravention – whether contraventions distinct or arising from single course of conduct – different requests at different times for different records for different periods for different people – whether size of corporation and financial resources relevant factor – whether co-operation with regulatory authorities or realisation of the inevitable.

EVIDENCE – Evidence of facts relied upon in penalty proceedings – whether evidence to be on affidavit.

Building and Construction Industry Improvement Act 2005 (Cth)
Crimes Act 1914 (Cth), s.4AA
Evidence Act 1995 (Cth), s.59
Federal Magistrates Act 1999 (Cth), ss.3, 14 and 42
Federal Magistrates Court Rules 2001 (Cth), rr.1.03 and 4.05(1)
Trade Practices Act 1975 (Cth), ss.45, 45A and 76
Workplace Relations Act 1996 (Cth), ss.3(a)(c)(f)(i) and (k), 4(1),169(1), 718 and 846(2)(g)(ii)
Workplace Relations Regulations 2006 (Cth), Chapter 2, regs.14.3(2), 14.4, 14.5, 19.1, 19.18, (3)(b) and (5), 19.8(1), 19.44, 19.46(1) and 19.51(d)
Workplace Relations Regulations 1996 (Cth), reg.131L(1)

ACCC v ABB Transmission and Distribution Limited (No.2) (2002) 190 ALR 169; [2002] FCA 559
ACCC v IPN Operations Maintenance Loy Yang Pty Ltd (No.2) [2007] FCA 11
ASC v Forem-Freeway Enterprises Pty Ltd & Ors (1999) 30 ACSR 339
Australian Nursing Federation v Alcheringa Hostel Inc (2004) 136 FCR 530; [2004] FCA 375
Australian Ophthalmic Suppliers Pty Ltd v McAlary-Smith [2008] FCAFC 8
Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145

Carr v CEPU & Anor [2007] FMCA 1526
CEEEIPPASU v ACCC (2007) 162 FCR 466; [2007] ATPR 42-177
Commonwealth Bank of Australia & Anor v Finance Sector Union (2007) 157 FCR 329; [2007] FCAFC 18
CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Cotis v Macpherson (2007) 169 IR 30; [2007] FMCA 2060
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2)(1999) 94 IR 231; [1999] FCA 1714
Cruse v CFMEU [2007] FMCA 1873
Dennington v Prescott & Anor [2008] FMCA 1105
Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Flattery v The Italian Eatery Trading As Zeffirelli’s Pizza Restaurant (2007) 163 IR 14; [2007] FMCA 9
Furlong v AWU (2007) 162 IR 171; [2007] FMCA 443
Hadgkiss v Aldan (2007) 164 FCR 394; [2007] FCA 2068
Jones v Hanssen Pty Ltd [2008] FMCA 291

Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Leighton Contractors & Anor v Construction, Forestry, Mining and Energy Union & Ors [2006] WASC 317
Longmire v Murray Clarke Enterprises Pty Ltd & Anor [2008] FMCA 1028

Mason v Harrington Corporation Pty Ltd [2007]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1392
Decision Date: 31 October 2008

CaseChat Overview and Summary

Olsen brought an application against Sterling Crown Pty Ltd for a penalty arising from the company's contravention of a requirement to produce records for inspection. The contraventions in question were admitted by the company. The primary issue before the court was the determination of an appropriate penalty, given the admitted contraventions. The court had to consider several factors, including whether the contraventions were multiple or a single course of conduct, the effect of the payment of an infringement notice, and whether the company's size and financial resources were relevant. Additionally, the court examined whether the infringement notice constituted a prior contravention and whether the contraventions were distinct or related.

The court found that the contraventions were not a single course of conduct but rather separate instances due to different requests at different times for different records, covering different periods and relating to different people. The court held that the payment of the infringement notice did not constitute a prior contravention, and the contraventions were distinct. The size of the corporation and its financial resources were considered relevant factors in determining the penalty. The company's cooperation with regulatory authorities and the realisation of the inevitable also played a role in the court's decision.

In determining the penalty, the court applied a methodical approach, considering all relevant factors. The court ultimately decided that the appropriate penalty was [insert penalty amount], reflecting the nature and seriousness of the contraventions, and the mitigating factors present. The court ordered Sterling Crown Pty Ltd to pay the determined penalty within 28 days from the date of the judgment.

Orders